No. 14973 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Appellant,

vs

# . CHARLES SANCHEZ, Defendant and Respondent.

Appeal from: DistrictCourt of the SixteenthJudicial District, Honorable Alfred B. Coate, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana John S. Forsythe, Forsyth, Montana For Respondent: Clarence T. Belue, Hardin, Montana

Submitted on briefs: February 27, 1980

Filed: ,. 5,c'GQ -YMr. Justice John C. Sheehy delivered the Opinion of the Court.
This is an appeal from an order entered in Rosebud County District Court dismissing the State's appeal of this cause from justice court. The sole issue presented for review iswhether the State may appeal a dismissal order of a justice court pursuant to section 46-20-103, MCA? Charles Sanchezwas brought to trial in Rosebud County Justice Court on June 6, 1979 onmisdemeanor charges of reckless driving and obstructing a peace officer. Sanchez entered a plea of guilty to the reckless driving charge but went to trial on the remaining charge. On the second day of trial the justice of thepeace granted Sanchez's motion to dismiss, discharged the jury and released Sanchez. The State sought to appeal the justice court dismissal by a trial -- de novo in District Court. A show cause hearing

was held on June 27, 1979. Subsequently on July 12, 1979, the District Court issued an order denying the State's right of appeal on the grounds that the State had no statutory authority to appeal a dismissal in a criminal case. On July 19, 1979, an attemptwas made to refile the charge in justice court. The justice court dismissed the complaint on double jeopardy grounds. On August 8, 1979, the State filed a petition in this Court for awrit of supervisory control directing the filing of the requested information. The petition was denied on September 4. 1979 for the reason "theremedy by appeal is plain. speedy and adequate" thus precluding issuance of an extraordinarywrit. The State now appeals from the July 12, 1979 dismissal order of the District Court.Solution of the issue presented for our review is found in the 1972Mont. Const. Art. VII, 54, which delineates the jurisdictionof district courts. Subsection 2 states in part: "Thedistrict court shall hear appeals from inferior courts as trials anew unless otherwise provided by law.. 

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# ." Turning to Title 46, the Criminal Procedure Title of the Montana CodesAnnotated, and in particular, chapter 17 concerning lower courtproceedings,we find part 3 entitled "Procedure After Trial--Justices1and City Courts." Section 46-17-311, MCA, states: "Appeal. (1) All cases on appeal from justices' or city courtsmust be tried anew in the district court and may be tried before a jury of six selected in the samemanner as a trial jury in a civil action, except that the total number of jurors drawn shallbe at least sixplus the total number of peremptory challenges. "(2) The defendantmay appeal to the district courtby giving written notice of his intention to appealwithin 10 days after judgment. 

### " (3) Within 30 days, the entire record of the justice's [sic]or city court proceedings must be transferred to the district court or the appeal must be dismissed. It is the duty of the defendant to perfect the appeal." However, aswe shall see, this statute is applicable only to appealing defendants and does not grant the State an appeal. In the present case, it appears the causewas dismissed in justice courtpursuant to defendant's motion which was premised on denial of defendant's constitutional right to compelwitnesses to testify on his behalf in accordancewith 1972Mont. Const. Art. 11, S24. A witness subpoenaedby both parties testified for the prosecution but failed to appear for the defense. As previously noted the District Court dismissed the State's appeal for lack of jurisdiction, and we agree. Appellant argues that this appeal is not brought pursuant to section 46-17-311, the trial -- de novo statute,but pursuantto section 46-20-103(2)(a)insteadwhich provides: "Scopeof appeal

## & state. (1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.

"(2) The statemay appeal from any court order or judgment the substantive effect of which results in: 

### " (a) dismissing a case;" Statutes granting the right of appeal to the state in criminal actions must be strictly construed and limited to the instancesmentioned. State 

### v. Hagerud (1977),174Mont. 361, 366, 570 P.2d 1131, 1134; State v. Cool (1977),174 Mont. 99, 102, 568 P.2d 567, 568; State 

### v. Peck (19281,83 Mont.

Although the statutes in question are not identical to those concernedwithin the immediate case,we find the reasoning in Forsythe

### v. Wenholz (1976),170Mont. 496, 554 P.2d 1333 applicable to the instant case. In that casewe stated: "Initially,we note this Court in State

### v. Bush, 164 Mont. 81, 518 P.2d 1406, stated:

II I 

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# .. since the code [of criminalprocedure] was adopted as one comprehensive piece of legislation it should be considered in its entirety to determine the effect of any one section.

### ' "Thedistrict court was correct in excluding justices of the peace from the purview of section 95-2101because the particular context of that section in Montana's Code of Criminal Procedure clearly requires a different meaning than that propounded by the appellant, Section 95-201,R.C.M. 1947. Chapter 20, Title 95, R.C.M. 1947 'Justiceand Police Court Proceedings', was accompanied by a Criminal Law Commission Comment which states in part: "'This Chapter includes only those sectionswhich are peculiar or apply exclusively to justice and police courts.. 

# . .' "InChapter 20, the only post-trial relief afforded is an appeal to the district court for a trial de novo. Section 95-2009,R.C.M. 1947." [Now section 46-17-311,MCA]. Forsythe, 170Mont. at 498-99, 554 P.2d at 1334-35.Section 46-20-103, MCA, when taken incontext with all of the sections and provisions of Title46 and considered in lightof how the original code of criminal procedure was arranged and adopted, leads us toconclude that the scope of the section applies only toMontana districtcourts and not tojustice courts. As a result the Statehas no right to appeal the final decision of a justice court ina criminal case, whether it be pursuant to section 46-20-103, MCA, or section 46-17-311, the trial de -- novo statute. Statev. Bush (1974), 164 Mont. 81, 518 P.2d 1406, applies only tointerlocutory orders of the justice court. The decision of the District Court is affirmed.

WeConcur:

Chief Justice j Justice 

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